THE PROSECUTOR WENT BEYOND THE PROVIDENCE OF REASONING OF THE EVIDENCE INFORMING THE JURY IN ITS ARGUMENT THAT THE DEFENDANT HAD ADMITTED THAT HE OPERATED THE VEHICLE UTILIZED IN THE COMMISSION OF THE OFFENSE ON 8/19/96 IN THE A.M., WHERE SUCH STATEMENT IS NOT A MATTER OF RECORD.
IT'S WELL ESTABLISHED THAT CLOSING ARGUMENTS AT TRIAL ARE LIMITED ON THE FACTS ON THE RECORD. HOWEVER, THE INTRODUCTION OF NEW EVIDENCE OR ARGUING FACTS NOT FOUND IN THE EVIDENCE IS INAPPROPRIATE. STATE V. RICHARSON, 49 WIS. 2D. 75, 83, 170 N.W. 2D. 775, 780 (1969).
THE STATE IN ITS CLOSING ARGUMENT, EVEN THOUGH THE DEFENDANT DID NOT TESTIFY AT HIS TRIAL APPRISED THE JUROR'S THAT: "HE (THE DEFENDANT) HAD INDICATED THAT HE HAD BEEN OPERATING IT (THE CAR UTILIZED IN THE COMMISSION OF 'THE OFFENSE) AS SOON AS THE MORNING OF THE SHOOTING, SO LORENZO JOHNSON ADMITS BEING IN THE AREA AT THE TIME OF THE SHOOTING..." (A:184: 4-7) (EMPHASIS ADDED)
THE DEFENDANT APPRISED INV. MICH CORROBORATIVELY ON 10/31/96 AND 11/1/96 THAT HE 'LAST OPERATED THE CAR THE EVENING PRIOR TO THE SHOOTING' OR ON THE EVE OF 8/18/96. (A:185-186 (EMPHASIS ADDED). THE STATEMENTS OF THE DEFENDANT WERE NEVER ENTERED OR RECEIVED AS EXHIBITS AT TRIAL.
FOOTNOTE 5: THE COURT HELD IN STATE V. JACKSON, 212 WIS. 2D. 203, 218 (19), 567 N.W. 2D. 920 (1997) THAT COMMENTS ON FACTS NOT FOUND IN THE EVIDENCE IN CLOSING ARGUMENTS THAT ARE DEEMED INAPPROPRIATE MUST BE OBJECTED TO BY DEFENSE COUNSEL PRIOR TO THE RETURN OF THE VERDICT OR ARE DEEMED WAIVED ON APPEAL. WHEREAS THE COURT HELD IN STATE V. HAYES , 273 WIS .20. 1, 54 [114] (2004) THAT A WAIVED ARGUMENT CAN BE RAISED BY WAY OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE STATE APPRISING THE JURY THAT THE DEFENDANT DROVE THE CAR UTILIZED IN THE COMMISSION OF THE OFFENSE ON THE MORNING OF THE SHOOTING AND BEING IN THE AREA OF THE MORNING OF THE SHOOTING (A;184: 4-7) CONNOTATES TO THE JURY SUBSTANTIALLY THAT THE DEFENDANT WAS THE DRIVER OF THE CAR AND INVOLVED IN THE SHOOTING OF DEZREZ PIERCE. TO DETERMINE WHETHER THE STATE'S COMMENTS GIVE RISE TO A DUE PROCESS VIOLATION UNDER THE FIFTH, THIS COURT MUST ASK WHETHER THE STATEMENTS SO INFECTED THE TRIAL AS TO MAKE THE RESULTING CONVICTION A DENIAL OF DUE PROCESS. STATE V. JORGENSEN, (2008 WI 60) (6/13/2008) AT [24].
FOOTNOTE 6: EVEN THE COURT IN-STATE V. JORGENSEN 2008WI60)(6 13/2008)REITERATED THAT IT'S NOT APPROPRIATE FOR AN ATTORNEY TO ALLUDE TO A MATTER NOT SUPPORTED BY ADMISSIBLE EVIDENCE PURSUANT TO SCR 20:3.4 (E).
THE COURT IN JORGENSEN, SUPRA/ ALSO HELD THAT IF THE DEFENDANT SHOWS THAT THE UNOBJECTED ERROR IS FUNDAMENTALLY OBVIOUS AND SUBSTANTIAL, THEN THE BURDEN SHIFT TO THE STATE TO SHOW THAT THE ERROR IS HARMLESS.
TO DETERMINE WHETHER THE ERROR IS HARMLESS, THE APPELLATE COURT INQUIRES WHETHER THE STATE BEYOND A REASONABLE DOUBT THAT A RATIONALE JURY WOULD HAVE FOUND THE DEFENDANT GUILTY ABSENT THE ERROR BASED ON:
1) THE FREQUENCY OF THE ERROR;
2.) THE IMPORTANCE OF THE ERRONEOUSLY ADMITTED EVIDENCEr
3) THE PRESENCE OR ABSENCE OF CORROBORATING OR CONTRADICTING THE ERRONEOUSLY ADMITTED EVIDENCE:
4) WHETHER THE ERRONEOUSLY ADMITTED EVIDENCE DUPLICATES UNTAINED EVIDENCE;
5~) THE NATURE OF THE DEFNSE;
6) THE NATURE OF THE STATE'S CASE; AND,
7) THE OVERALL STRENGTH OF THE STATE'S CASE. IF THE STATE FAILS TO MEET ITS BURDEN OF PROVING THAT THE ERROR WAS HARMLESS THEN THIS COURT MAY CONCLUDE THAT THE ERROR CONSTITUTES PLAIN-ERROR PURSUANT TO §902.03(4). ID. AT [23].
Argument IX.
TRIAL COUNSEL FAILED TO PLACE A PROPER OBJECTION ON THE RECORD ALLOWING THOMAS' AVERY . ' TO INFORM THE JURY OF THE DEFENDANT'S ALLEGED INVOLVEMENT IN AN ARMED ROBBERY WITH THOMAS AVERY AS A VICTIM PRIOR TO THE INCIDENT OF 8/19/96, WHICH. SHOULD'VE BEEN A MATTER OF A MOTION IN LIMINE.
DURING THOMAS AVERY'S TESTIMONY, THE STATE SUA SPONTE ASKED OF THOMAS. AVERY WHAT HAPPENED WHEN HE WAS IN THE COMPANY OF WILLIAM GRIFFIN, WHO REPLIED THAT SOME DUDES HAD WALKED DOWN THE STREET AND STUCK THEM UP. (A:191: 17-21) WHEREAS, THOMAS AVERY STATED THAT HE DID NOT HAVE ANYTHING ON HIM, BUT THE DUDES HAD POINTED A GUN AT HIM. (A:191: 19-23) '
THE STATE ASKED WHO HAD ROBBED HIM, WHEREAS, HE RESPONDED THAT DERRICK HOWARD AND LORENZO. (A:192: 15-19) AVERY STATED THAT THE ROBBERY HAD OCCURRED AT THE NIGHT TIME (A:193: 6-8). DEFENSE COUNSEL ARGUED THAT THERE HAD BEEN NO MOTION ON THIS ISSUE FALLING UNDER THE PARAMETTERS OF OTHER ACTS EVIDENCE. (A:193: 22-25: 194: 1-2)
THE STATE'S OFFER OF PROOF ARGUMENT DID NOT DRAW A NEXUS. TO THE SHOOTING OF 8/19/96 UNDER §904.04 (2), BECAUSE ITS ARGUMENT WAS TO SHOW BAD CHARACTER OF THE DEFENDANT BY SIMPLY STATING THAT AVERY AND GRIFFIN WANTED THEIR MONEY BACK. (A:190: 10-25: 19 5: 1-9)
DEFENSE COUNSEL COUNTERED THAT THE ARMED ROBBERY WAS AN ALLEGATION, THAT THERE WAS NO POLICE REPORT OF ANY ARMED ROBBERY NOR CORROBORATION OF THE ARMED ROBBERY. (A:195: 12-19)
THE TRIAL COURT .STATED ON THE RECORD THAT"A MOTION SHOULD HAVE BEEN FILED PRIOR TO TRIAL AS IN-MOTION IN LIMINE (A:196: 11-13) .
' THE STATE ARGUED THAT THE ARMED ROBBERY ALLEGATION GOES TO MOTIVE, LEADING TO THE SHOOTING OF 8/19/96. (A:196: 21-25)
THE DEFENDANT DID NOT TESTIFY BECAUSE HIS LEGAL PREDILICTION BASED ON THE EVIDENCE WAS THAT HE WAS NOT GUILTY OF §940.01 OR §939.05 (B) AND (C) STATS, AND THE STATE'S ARGUMENT TO SHOW MOTIVE OF AN UNREPORTED ARMED ROBBERY WAS HIGHLY PREJUDICIAL FOR THE JURY TO HEAR CONTRARY TO THE PURVIEW OF §904.03.
THE COURT HELD IN STATE V. SULLIVAN, 216 WIS. 2D. 768, 576 N.W. 2D. 30 (1998), THAT A THREE STEP ANALYSIS IS TO BE APPLIED TO DETERMINE THE ADMISSIBILITY OF OTHER ACTS EVIDENCE. THE PROPONENT OF THE EVIDENCE BEARS THE BURDEN OF PERSUADING THE COURT THAT THE THREE STEP INQUIRY IS SATISFIED. THE PROPONENT OF THE EVIDENCE MUST CLEARLY ARTICULATE THEIR REASONS FOR SEEKING ADMISSION AND APPLY THE FACTS TO THE ANALYTICAL FRAMEWORK.
THOMAS AVERY FABRICATED ON THE STAND BY RETRACTING HIS PREVIOUS TESTIMONY THAT HE HAD SEEN THE DEFENDANT DRIVING THE VEHICLE DURING THE SHOOTING, WHEN HE HAD HEARD FROM OTHER PEOPLE THAT WERE TELLING HIM THAT THE DEFENDANT WAS ALLEGEDLY THE DRIVER OF THE CAR DURING THE SHOOTING. (A:160: 12-21) ALSO, THOMAS AVERY GAVE DIRECT TESTIMONY THAT HE NEVER SAW THE DEFENDANT AS THE DRIVER OF THE CAR, (A:160: 20-21), WHICH WAS ACKNOWLEDGED BY THE STATE AS A RECANTATION OF IDENTIFICATION. (A:162: 17-18)
THOMAS AVERY LIED ON THE STAND IDENTIFYING THE DEFENDANT BEING THE DRIVER OF THE CAR INVOLVED IN THE SHOOTING, THEN IT ONLY FOLLOWS THAT HE LIED ABOUT THE DEFENDANT BEING INVOLVED IN AN UNREPORTED ARMED ROBBERY ABROGATING MOTIVE OF THE DEFENDANT BEING THE DRIVER OF THE CAR INVOLVED IN THE SHOOTING, SHOWCASING THAT THE EVIDENCE OF CONDUCT WAS NOT OFFERED FOR A VALID PURPOSE, THE PROBATIVE VALUE OF THE ALLEGED CONDUCT INVOKES THE BALANCING TEST OF §904.03. SEE STATE V. SPRAGGIN, 77 WIS. 2D. 89, 252 N.W. 2D. 94 (1977) .
MOTIVE IS PROBATIVE OF THE IDENTITY OF THE CRIMINAL, MEANING THAT A VICTIM HAD BEEN PREVIOUSLY ASSAULTED OR THREATENED, EVINCING NOT MERELY A GENERAL DISPOSITION TOWARD VIOLENCE, BUT A VIRULENT' HOSTILITY TOWARDS A SPECIFIC INDIVIDUAL. THE RECORD ASCERTAINS THAT THE DEFENDANT NEVER HAD PRIOR PROBLEMS WITH THOMAS AVERY, WHEREAS, HIS "BEEF" IS WITH THE CO-DEFENDANT, DERRICK HOWARD, IF THE ARMED ROBBERY TRANSPIRED AT ALL PRIOR TO THE SHOOTING.
ARGUMENT X.
TRIAL COUNSEL FAILED TO MOVE FOR A MISTRIAL WHEN THE PROSECUTOR PURSUED AN UNINTERRUPTED LINE OF QUESTIONING EXPOSING THE DEFENDANT TO THE JURY THAT HE WAS IN PRE-TRIAL CUSTODY.
DURING PRE-TRIAL MOTION IN LIMINE, THE TRIAL MADE RECORD THAT THE DEFENDANT WAS TO BE IN STREET CLOTHES, SO THAT THE JURY WOULD NOT KNOW THAT THE DEFENDANT WAS IN PRE-TRIAL CUSTODY-HIS DUE PROCESS AND THE PRESUMTION OF INNOCENCE . SEE ESTELLE V. -24- WILLIAMS, 425 U.S. 501, 96 S.CT. 1691, 1692 (1976).
ON 6/23/98. CHRISTOPHER COSEY WAS TESTIFYING FOR THE STATE STATED ON THE RECORD THAT HE HAD SEEN THE DEFENDANT IN JAIL A FEW MINUTES AGO ON 6/23/98, AND THAT THEIR CELLS WERE NEXT TO EACH OTHER IN THE PRESENCE OF THE JURY. (A:199: 3-18).
DEFENSE COUNSEL OBJECTED TO THE LINE OF QUESTIONING TO CHRISTOPHER COSEY EXPOSING THE DEFENDANT THAT HE WAS IN PRE-TRIAL CUSTODY IN THE PRESENCE OF THE JURY ARGUING THAT THE "DEFENDANT WAS ONE OF THE POPULATION AND THAT HE'S NOT IN CUSTODY IN AN ATTEMPT TO DEMONSTRATE NOT TO CALL ATTENTION TO HIS CUSTODY STATUS. (A:200: 15-23) DEFENSE COUNSEL REQUESTED A MISTRIAL. (A:202: 7-8)
THE STATE ARGUED THAT THEY HAVE A RIGHT TO EXPLORE WHAT'S GOING ON. (A:202: 14-15)
THE CIRCUIT COURT VIOLATING ITS OWN MOTION IN LIMINE ORDER APPRISE ALL PARTIES THE FOLLOWING:
"THE COURT: I THINK YOU PROBABLY GOT THE RIGHT TO EXPLORE THE FACT THAT THEY'RE IN JAIL TOGETHER AND THEY'RE TALKING TO EACH OTHER." (A:202: 16-18)' (EMPHASIS ADDED)
WHEN THE TRIAL COURT VIOLATED ITS OWN PRE-TRIAL MOTION IN LIMINE ALLOWING THE STATE TO CONTINUE WITH A LINE OF QUESTIONING WITHOUT A RATIONAL EXPOSING THE DEFENDANT TO THE JURY THAT HE WAS IN PRE-TRIAL CUSTODY, IT REDUCED HIS PRESUMPTION OF INNOCENCE AND THE STATE'S BURDEN OF PROOF UNDER THE FIFTH AMENDMENT.
THE PRESUMPTION OF INNOCENCE IN THE ABSENCE OF CONTRARY FACTS, IS TO BE ASSUMED THAT ANY PERSON'S CONDUCT UPON A GIVEN OCCASION WAS LAWFUL. THE BURDEN IS UPON THE STATE OF PRODUCING EVIDENCE OF GUILT OF THE ACCUSED, AND PERSUADING THE JURY OF HIS GUILT BEYOND A REASONABLE DOUBT. IT'S ALSO AN AMPLIFICATION OF THE STATE'S BURDEN OF PERSUASION.
THE PRESUMPTION OF INNOCENCE IS A BALANCING METHOD TO OFF SET THE STATE'S SUPERIOR ABILITY OF ACCESS TO EVIDENCE AND PROOF. THE PRESUMPTION OF INNOCENCE IS NOT ONLY BASED ON JUDICIAL ESTIMATE OF PROBABILITIES BUT ALSO UPON THE DIFFICULTIES INHERENT TO PROVE THAT THE MORE PROBABLE EVENT HAD OCCURRED. THE PRESUMPTION OF INNOCENCE ONLY OPERATES TO PERMIT THE STATE TO MAKE OUT A PRIMA FACIE CASE BY PROOF AGAINST THE DEFENDANT.
THE TRIAL COURT'S ERROR OF VIOLATING ITS OWN PRE-TRIAL MOTION IN LIMINE ORDER ONY EASED THE STATE'S BURDEN OF PROOF, WHILE REDUCING THE APPLICATION OF THE REASONABLE DOUBT STANDARD UNDER THE FIFTH. THE BURDEN OF PROOF IS THE END RESULT BY CONVICTION. THE BURDEN IS ON THE STATE OF PRODUCING EVIDENCE, WHILE PERSUADING THE JURY THAT THE ALLEGED EVIDENCE IS TRUE. THE EVIDENCE MUST BE SUCH THAT A REASONABLE PERSON COULD DRAW FROM IT. THE INFERENCE OF THE EXISTENCE OF THE PARTICULAR FACT TO BE PROVED OR THAT THE EVIDENCE IS OF SUCH QUALITY AND WEIGHT THAT REASONABLE AND FAIRMINDED PEOPLE IN THE EXERCISE OF IMPARTIAL JUDGMENT UNDER THE SIXTH MIGHT NOT REACH DIFFERENT CONCLUSIONS.
THUS, THE STATE EXPOSING THE DEFENDANT IN PRE-TRIAL CUSTODY TO THE JURY CONNOTATED DEBILITIES IN THE STRENGTH OF ITS PRIMA FACIE CASE, WHERE THE EVIDENCE WAS NOT OF SUCH QUALITY AND WEIGHT THAT REASONABLE AND FAIRMINDED PEOPLE IN THE EXERCISE OF IMPARTIAL JUDGMENT WOULD HAVE' REACHED DIFFERENT CONCLUSIONS IN DELIBERATIONS.
HENCE, THE PRESUMPTION OF' INNOCENCE WAS COMPROMISED WHEN THE TRIAL COURT ALLOWED THE STATE TO PURSUE THE RIGHT TO EXPLORE THE FACT THAT CHRISTOPHER COSEY AND THE DEFENDANT WERE IN JAIL TOGETHER VIOLATING THE DEFENDANT'S DUE PROCESS UNDER.THE FIFTH. (A:202: 16-18) .
CONCLUSION
THEREFORE, BASED ON THE AFOREGOING ARGUMENTS AND FACTS PRESENTED HEREIN, THE APPELLANT REQUESTS A NEW TRIAL PURSUANT TO §974.06 (3)(D); OR IN THE ALTERNATIVE, WHATEVER THIS COURT DEEMS APPROPRIATE TO CORRECT THE CONSTITUTIONAL VIOLATIONS PRESENTED HEREIN SUFFERED BY THE APPELLANT.
DATED; RESPECTFULLY-SUBMITTED,
Lorenzo Johnson 295855
W.C.I.
P.O. BOX 351
WAUPUN, WI. 53963-0351
